Negligence Accrues When Damage Suffered

Yesterday’s British Columbia Court of Appeal decision in Kruk v. Ho, 2008 BCCA 201 is a good source for the principle that a negligence claim accrues when damage is suffered and not before. This is not an issue of discoverability but rather simple cause of action accrual – the damage may be suffered but not discovered for some time.

Commencement of the Limitation Period Negligent Conduct

[13] It is apparent from a review of the legal principles and the trial judge's reasons for judgment that he misconceived the principle to be applied in determining when the limitation period begins, and therefore erred in concluding that the ultimate limitation period began in 1994.

[14] There is no dispute about the principle to be applied. The ultimate limitation period (i.e., the period after which no action may be brought) begins when the right to bring an action arises, that is, when all the elements of the cause of action come into existence. In a negligence action, the ultimate limitation period does not begin until both the negligent conduct and the consequent damage have occurred. As Quijano J. put it in Hughes v. Cooper Estate (1997), 36 C.C.L.T. (2d) 42 (B.C.S.C.), at para. 28: It is not the negligent act alone which triggers the running of the limitation period but it is the combination of the negligent act and the consequent damage.